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Old 03-06-2018, 08:53 PM   #61
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Originally Posted by haertig View Post
Gutenberg is making books available on its servers. What they are making available is legal where they are making it available.
Perhaps, but it's not legal everywhere they're making it available to. As we just saw.

Jurisprudence around Internet downloads doesn't work based on where it's being made available from. If it did, then eReader and Fictionwise wouldn't have had to stop selling ebooks outside the US back in 2009, because their servers were in the US where it was legal for them to sell those ebooks. But they did. For purchased products, the point of sale is considered to be the computer on which the purchase is made. By the same token, if a product is downloaded for free, the location where the download is considered to have happened is the location of the computer that made the download, not the server where it was downloaded from.

That's the way the Internet has worked for at least 9 years now. That's the way the courts are going to see it. You can say it shouldn't work that way until you're blue in the face, but good luck making that stick in the real world.
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Old 03-06-2018, 09:02 PM   #62
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It doesn't matter where the file comes from. The law doesn't care. It only matters that it is made to appear in Germany, on the computer of a German citizen, through the action of Project Gutenberg's server making it available for that person to download.
That doesn't become true simply because you repeat it over and over again.
It's like saying the bookshop in Minsk is making a book appear on a German's bookshelf in Berlin.

The PG servers aren't in Germany. They can't make things appear on a German citizen's computer. That requires the action of a German citizen initiating a download, which causes a German network to reach out to an external one, then some other series of hops to transport that book into Germany and eventually onto the German's computer.

Police your network by requiring the German ISP not to import contraband. Police your citizens for violating your copyright laws. That's how it's always worked in other media. You don't make the bookstore in Minsk require a passport and knowledge of other country's laws; you stop the import of things at the border, or hold the person liable for bringing illegal goods into the country.

I understand that the German courts find it expedient to try to shift enforcement outside their jurisdiction, but it's a pretty major shift in international sovereignty that shouldn't happen lightly.
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Old 03-06-2018, 09:08 PM   #63
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Originally Posted by Abzeronow View Post
They already have danger of lawsuit from say HarperCollins as you cited in an earlier example.
Without thinking it through, I thought that somehow pre-1923 English language books weren't an issue. But I can see you are correct on titles published in the UK before the US. Wikipedia certainly agrees with you:

The Secret Adversary
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The Secret Adversary is one of only two of Christie's books that are in the public domain in the US (the other being The Mysterious Affair at Styles). The copyright on the book will not expire in many other Western countries until 2047.
So, I compliment the British on their restraint while (mildly) condemning the Germans.

Last edited by SteveEisenberg; 03-07-2018 at 07:56 AM. Reason: spelling
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Old 03-06-2018, 09:16 PM   #64
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That doesn't become true simply because you repeat it over and over again.
It's like saying the bookshop in Minsk is making a book appear on a German's bookshelf in Berlin.


I understand that the German courts find it expedient to try to shift enforcement outside their jurisdiction, but it's a pretty major shift in international sovereignty that shouldn't happen lightly.
The courts have said that it is true, so it is true unless Project Gutenberg wins on appeal. The Minsk example is also a reach since the German citizen would have to physically go to Minsk & clear Customs to get back into the EU(Belarus is not an EU member). I'm pretty sure if that Minsk bookshop where doing a mail order business to Germany & selling public domain Thomas Mann books (since Belarus is Life + 50), the German courts would frown on that.

In the US and Germany's case, both are parties to copyright treaties and also mutual judicial enforcement treaties. If this were German court ruling on a hate speech issue, I could see your point. But this is clear. PG was violating German copyright law by making these still-under-copyright works available to German users. I feel for PG, I do. I don't like the precedent this makes, but this is the nature of the global Internet.
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Old 03-06-2018, 09:22 PM   #65
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In the US and Germany's case, both are parties to copyright treaties and also mutual judicial enforcement treaties.
Doesn't extradition only apply to something that is illegal in both countries? Or is "mutual judicial enforcement" something apart from extradition?

If you are right, Project Gutenberg America needs to move.
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Old 03-06-2018, 09:37 PM   #66
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Originally Posted by Robotech_Master View Post
...Jurisprudence around Internet downloads doesn't work based on where it's being made available from...
Now that is a sweeping claim - to see why that is so, have a look, for example, at the legislation differentiating Origin Based states from Destination Based states for internet purchases over the internet.
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Old 03-06-2018, 09:47 PM   #67
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...In the US and Germany's case, both are parties to copyright treaties and also mutual judicial enforcement treaties...
As far as I am aware the USA is not a signatory to any convention or treaty requiring recognition or enforcement of any other country's courts' judgements except in some cases of international arbitration (which is not the case in the PG matter).

If I am wrong in this could you point me to the relevant US legislation.
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Old 03-06-2018, 10:00 PM   #68
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Doesn't extradition only apply to something that is illegal in both countries?...
As far as I am aware that is generally so. It is certainly so for my own country who will generally (see Edit below) only extradite to another if the offence was punishable in my own country and would have carried a jail term of not less than 12 months.

There are often other exceptions where a country will not extradite to another even if an agreement exists, for example if the penalty for the offence in the country to be extradited to includes the death penalty. In that case, for example, it is not unknown for an extradition to still be made if the extradited to country guarantees that a death sentence will not be imposed.

EDIT re. "generally"; comes to mind, without checking, that the only exceptions are crimes to do with taxation and revenue (would one know that would be so?), or if the convicted person was convicted in absence in which case they are treated as just being accused of the offence.

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Old 03-06-2018, 10:14 PM   #69
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As for Mein Kampf, there is no need to enforce the copyright as it continues to stay illegal to publish / print in Germany even now that the copyright is expired.
Is it legal to publish the sequel to Mein Kampf in Germany?

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Old 03-06-2018, 10:16 PM   #70
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"Because no law says I have to. Please cite one that applies to me."
Roman Dutch Law: If permission is not explciitely granted, then the activity is prohibited.
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Old 03-06-2018, 10:24 PM   #71
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Does that mean that US eBook companies would have to block all North Korean IP addresses as a result?
Technically, US based ISPs are supposed to block all North Korean IP addresses, along with those for half a dozen or so other countries around the world.

I've only known one ISP to block North Korean IP addresses, and that was only after their run in with the three letter agency that enforces that law.

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Old 03-07-2018, 01:01 AM   #72
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It would be one thing if S. Fischer were simply seeking a geoblock to prevent German users from accessing these books. Instead they are demanding the complete removal of these books from Project Gutenberg.

Quoting from S. Fischer's press release:
"Alle Versuche des S. Fischer Verlags, Gutenberg.org ohne Befassung eines Gerichts dazu zu bewegen, diese Texte aus dem Angebot zu nehmen, scheiterten."
All attempts by S. Fischer Publishing to convince Gutenberg.org to remove these texts from their offerings without involving a court, failed. [translation mine]
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Old 03-07-2018, 01:11 AM   #73
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It would be one thing if S. Fischer were simply seeking a geoblock to prevent German users from accessing these books. Instead they are demanding the complete removal of these books from Project Gutenberg.

Quoting from S. Fischer's press release:
"Alle Versuche des S. Fischer Verlags, Gutenberg.org ohne Befassung eines Gerichts dazu zu bewegen, diese Texte aus dem Angebot zu nehmen, scheiterten."
All attempts by S. Fischer Publishing to convince Gutenberg.org to remove these texts from their offerings without involving a court, failed. [translation mine]
According to the text of the decision, Project Gutenberg protested they'd have to remove them but Fischer said geoblocking would be sufficient.

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Originally Posted by English translation, pg. 18
Contrary to the defendants’ opinion, the plaintiff’s request under I. is also not without merit on the basis of being too broadly defined. In this regard, the defendants claim that the plaintiff’s request does not indicate how the defendants are supposed to prevent the infringements. [The defendants claim] this is only effectively possible by deleting the works.

According to the case law of the Federal Court of Justice, it is not a requirement for a plaintiff’s request like this one to explicitly indicate which specific duties of action and inspection should be demanded of the respondent. Rather, it is sufficient if the duties of care and inspection to be complied with follow from the statement of claim and the reasons for the decision (Federal Court of Justice, GRUR 2016, 268, marginal number 14 - Access Provider; cf. also EuGH EuZW 2016, 821 - McFadden). These requirements are met in this case, since it can be gathered from the statement of claim that the plaintiff demands that the defendants use geoblocking to block users in Germany from accessing the works in dispute, at least.

Regarding the defendants’ objection that geoblocking is not an effective measure, this is also irrelevant according to the case law of the Federal Court of Justice. It is sufficient in this regard that the unlawful access is made more difficult (Federal Court of Justice, GRUR 2016, 268 -Access Provider).
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Old 03-07-2018, 02:27 AM   #74
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Is it legal to publish the sequel to Mein Kampf in Germany?

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What sequel? If you mean the annotated version, then that one can be published if you own the copyright, but it has a different copyright than the original, obviously.

The ban of the original is now a criminal offense rather than a mere copyright violation, far as I understand, since copyright expired.

ETA: to clarify, the ban is on printing and publishing only, it was never illegal to own, sell, or buy an original.

ETA2: Never illegal is probably a too strong word. It is likely that in East Germany it may have been illegal, but I have no recollection of the laws back then, I was too young.

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Old 03-07-2018, 04:07 AM   #75
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I'm not a lawyer, but this seems to be one of those cases where the Internet runs into the real world and comes off the loser. Those foreign businesses, and the law that protects them, don't care that an Internet file comes from somewhere far away in the real world. They just care that it pops up in a physical location in their part of the world, and that's a no-no. I can't imagine that the courts are going to be that willing to entertain the idea that a foreign entity should be excused for local effects on their business just because those effects come from a server that's nowhere near there.
That's a fascinating interpretation of international law. So now, entities in a country that enacts stricter air pollution/water pollution control laws can sue entities in a country with laxer laws because air and water circulate in the biosphere? Or a country that enacts a population control law can sue a country that doesn't for increasing the human population? Or publishers in country A can sue a printer in country B because the printer in country B prints a book that is out of copyright in B but not in A and then a citizen of A goes to B and buys the book and the printer does not check his passport?

The last example in particular is highly relevant to the case in hand. Gutenberg will argue that they are not selling/making available their books to citizens of Germany, Holtzbrink will argue they are. And the case will be decided by whether the higher court agrees with PG or the publisher.
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